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Popular Law Library Vol6 Real Property, Abstracts, Mining Law | by Albert H. Putney



Considerable confusion has arisen on account of the double use of the term real property; the term being used to represent both the tangible property itself and interests in such property. Not all interests in real property, however, are considered as real property; estates less than a freehold being considered personal property. A freehold is a life estate or an estate of inheritance. The reason why estates less than freehold are considered real property is to be found in the Feudal system. Under this system a life estate was the only estate which was considered worthy of acceptance by a freeman and all lesser estates were considered of such small importance that instead of being classed with freeholds, they were classed with the less important - personal property...

TitlePopular Law Library Vol6 Real Property, Abstracts, Mining Law
AuthorAlbert H. Putney
PublisherCree Publishing Company
Year1908
Copyright1908, Cree Publishing Company
AmazonPopular Law-Dictionary
-Seventeenth Subject. Real Property. Chapter I. Introductory. Section I. Real Property
Considerable confusion has arisen on account of the double use of the term real property; the term being used to represent both the tangible property itself and interests in such property. Not all int...
-Section 2. Feudal System
The English law of real property from which the American law on this subject is taken in its entirety is based upon the Feudal system. The Feudal system has already been discussed under the subject of...
-Feudal System. Continued
3. The remaining point of difference between the feudal polity and the polity of other states is, the nature of the relation between the chief and the vassals. This is particularly distinguishable by ...
-Section 3. Livery Of Seisin
The character and importance of livery of seisin in the fedual system of land ownership has been thus described by a recent author: It is absolutely essential - if we leave out of account certain exc...
-Section 4. Scope Of This Subject
Following out the plan in this work of avoiding repetition, in the treatment of the subject of real property, many topics generally treated under this title have been passed over with a mere reference...
-Section 5. Authorities
The subject of real property is one of the oldest branches of the law, and had become fully developed before the birth of some other branches of the law which have attained prominence at the present t...
-Section 6. Ownership, Possession And Enjoyment
The various rights in real estate are included under the three expressions, ownership, possession and enjoyment. The idea conveyed by each of these three terms is well expressed by the following extra...
-Section 7. Land
Real property is said to include land, tenements, and hereditaments. Terra, land, in the legal signification, compre-hendeth any ground, soil, or earth whatsoever; as meadows, pastures, woods, moo...
-Section 8. Tenements
Tenements is a larger term than land and includes everything which might be holden under the Feudal system. Tenementum, tenement, is a large word to pass not only lands and other inheritances whic...
-Section 9. Hereditaments
But haeretidtamentum, hereditament, is the largest word of all in that kind; for whatsoever may be inherited is an hereditament, be it corporeal or incorporeal, real or personal or mixt. 12 An h...
-Section 10. Incorporeal Hereditaments
The true distinction between corporeal and incorporeal hereditaments has been quoted as follows: 'While the term 'incorporeal' is still employed to designate certain kinds of real property of an invis...
-Section 11. Easements
An easement is sometimes classified as an incorporeal hereditament, but at other times it is a mere license. An easement is a right in favor of some person of property imposed upon another piece of...
-Section 12. Fixtures
The term fixtures is one of doubtful meaning, being used in different works and decisions in a diametrically opposite significance. Applied in the former sense is to apply the terms trade, agricultu...
-Section 13. Emblements
Emblements is the rights which the owner of an estate of uncertain duration has in crops which were planted but not harvested, at the time of the termination of the estate. Emblements do not exist in ...
-Section 14. Estates And Titles
The greater part of this subject is taken up with the treatment of the various species of estate and titles in real property. It is important at the outset to clearly understand the distinction betwee...
-Chapter II. Estates Classified As To Quantity. Section 15. Classification
Estates as to their quantity are first divided into freeholds and less than freeholds. Freeholds are subdivided into estates of inheritance and freeholds less than inheritance. Freeholds of inheritanc...
-Section 16. Freeholds
Freeholds, or estates of indeterminate duration, are in turn divided into estates of inheritance or in fee, and estates not of inheritance, or for life. The former being, where the interest devolves ...
-Section 17. Estates Of Inheritance
Estates of inheritance are those estates which upon the death of the holder, still continue and descend to his heirs. Estates of inheritance are divided into estates in fee-simple and estates in fee-t...
-Section 18. Fee-Simple
The ancient and the modern character of the estate in fee-simple are described in the following two quotations, one from a seventeenth and the other from a twentieth century legal writer. FEE come...
-Section 19. Estates In Fee-Tail
Estates in fee-tail are the second class of estates of inheritance. An estate in fee-tail differed from an estate in fee-simple in that while the latter was a grant to a person and his heirs generall...
-Estates In Fee-Tail. Continued
In the same manner it is of the tenant in special tail, etc. For in every gift in tail without more saying, the reversion of the fee simple is in the donor. This is wrought by the construction of...
-Section 20. Life Estates
Freeholds less than inheritance are life estates. Life estates are subdivided into legal and conventional life estates. Conventional life estates are those created by the acts of the parties and inclu...
-Section 21. Conventional Life Estates
A conventional life estate is one created by the act of the parties. If may be for the life of the tenant, for the life or lives of others, or for the lives of the tenant and another jointly.10 The li...
-Section 22. Legal Life Estates
The four legal life estates are those of coverture, curtesy, dower, and homestead. All [of these estates arise by operation of law independent of contract. The first three of these have already been d...
-Section 23. Homestead
The estate of homestead is in reality rather an exemption from liability of being taken on execution than a true estate. Every homestead estate must also be some other kind of estate. Homestead estate...
-Section 24. Estates Less Than Freeholds
The feudal system recognized no estate less than freeholds. Interests less than freeholds might be created by contract, but originally in case of the breach of such a contract there could only be a su...
-Section 25. Estates For Years
An estate for years is an estate for any definite period, even if less than a year. A lease from one year from a specified date will terminate at midnight of the preceding day of the next year.14 A te...
-Section 26. Estates At Will
Estates at will are estates which are not held for any definite period, which are terminable at the will of either party. A tenancy at will is terminable by a demand for possession, without any formal...
-Section 27. Estates From Year To Year
A tenancy from year to year is practically a form of the tenancy at will, out of which it grew. This tenancy differs from the tenancy at will in that while the latter can be terminated at any time, th...
-Section 28. Estates At Sufferance
An estate at sufferance is the lowest estate known to the law. It exists where a tenant rightfully in possession continues to occupy the property after the expiration of his term. The tenant in such a...
-Chapter III. Estates Classified As To Quality. Section 29. In General
In addition to being classified as to their quantity, estates are also classified as to their quality. By the quality of the estate, is meant its certainty of continuance. Estates as to their quality ...
-Section 30. Fee-Conditionals
A fee-conditional was an early species of estate at common law which was in effect a life estate granted to the first taker which upon the birth of issue would be enlarged into an estate in fee-simple...
-Section 31. Estates On Condition
An estate on condition is an estate which is created, enlarged or defeated by the happening or not happening of some event. As already stated in the previous section, estates on condition are divided ...
-Section 32. Conditions Precedent
A condition precedent is one, upon the fulfillment of which, the estate comes into existence. In the case of such a condition, the grantee has no rights prior to the fulfillment of the condition, when...
-Section 33. Estates On Condition Subsequent
An estate upon condition subsequent is one which will be terminated by the happening or not happening of a certain event. The condition may be either one involving the use of the land or it may be a c...
-Section 34. Restrictions
A restriction is a limitation upon the use of property contained in the deed creating this estate. Restrictions differ from conditions subsequent in that their breach will not work a forfeiture of the...
-Section 35. Estates On Limitation
An estate on limitation is one created to continue until the happening of a certain event. In the creation of an estate upon limitation the words which mark the termination of the estate are used in c...
-Section 36. Comparison Between Estates Upon Limitation And Estates Upon Conditions Subsequent
An estate upon limitation differs from an estate upon conditions subsequent in three respects; (1) No causa qua supra. And the lessor not his heirs cannot enter; for if the lessor might enter, then he...
-Section 37. Conditional Limitations
A conditional limitation partakes of the nature both of a condition and a remainder. It is to be observed, that at the common law, whenever either the whole fee, or a particular estate, as an estate ...
-Chapter IV. Estates Classified As To Time Of Their Enjoyment. Section 38. In General
Estates as to the time of their enjoyment are divided into estates in possession and estates in expectancy. An estate in possession is one which entitles the holder to the possession of the property a...
-Section 39. Reversions
A reversion is the estate left in the grantor or his heirs after the preceding estate or estates have been granted away. A reversion is the residuary estate and always exists where the full fee has no...
-Section 40. Remainders
A remainder is a future estate created in favor of some other person than the grantor. There are four important general rules governing the creation of remainders. (1) The remainder must have a preced...
-Section 41. Classification Of Remainders
Remainders are either vested or contingent. Vested remainders, or remainders executed, are those by which a present interest passes to the party, though to be enjoyed in futuro, and by which the esta...
-Section 42. Contingent Remainders
Contingent remainders are those in which both the right of property and right of enjoyment are postponed.5 Besides the general rules governing all remainders, there are certain special rules governing...
-Contingent Remainders. Part 2
2 Bl. Rep. 1010. And it is also observable, that there was not one of these cases in which the ancestor took the legal estate of freehold. To sum up the distinctions between vested and contingent rema...
-Contingent Remainders. Part 3
The classification of contingent remainders most generally used at the present time, is as follows: tion over, of a real estate, whether by way of a particular estate, so as to leave a proper remainde...
-Contingent Remainders. Part 4
Anything which defeats the particular estate will defeat the contingent remainder depending upon it. ders are defeated by the entry of the grantor, therefore such remainder is void. It follows, tha...
-Contingent Remainders. Part 5
6 Reported I Coke, 66 B., 159-7. Between Baldwin and Smith, in the Common Pleas, which began Trin. 39, Eliz. rot., 1676, in a replevin, upon a special verdict, the case was such; Francis Archer wa...
-Contingent Remainders. Part 6
Dyer, 309a. Thirdly, (which was the principal point of the case), it was agree per totam cur', that by the feoffment of the tenant for life, the remainder was destroyed; for every contingent remainder...
-Chapter V. Estates Classified As To The Number Of Owners. Section 43. In General
Estates are divided, as regards the number of owners, into estates in severalty and joint estates. An estate in severalty is one where there is individual ownership. An estate of this character needs ...
-Section 44. Joint Tenancy
A joint tenancy is an estate held by two or more persons jointly so that during the lives of all they are equally entitled to the enjoyment of the land. Upon the death of one, his share vests in the s...
-Section 45. Tenancy In Common
A tenancy in common is a joint estate without the four unities required in a joint tenancy. The only unity required is that of possession. Like joint tenancies, tenancies in common may be either in fe...
-Section 46. Estates By Entirety
An estate by entirety was the estate which was formerly created by the gift, conveyance, bequest, or other transfer of real estate to husband and wife. They were said to hold by entireties instead of ...
-Section 47. Estates In Coparcenary
An estate in coparcenary was the joint estate which according to common law, was vested by descent in the heirs of an intestate. Such estates were like tenancies in common in that the doctrine of surv...
-Section 48. Partnership Estates
The rights of an individual partner in lands held by the partnership is an anolomous one. The title must be in members of the firm, or some of them as the Common law does not recognize the existence o...
-Chapter VI. Titles. Section 49. Titles
A title is the method of acquiring and the right of holding an estate in real property.1 Titles are first divided into original titles and derivative titles. Original titles include those acquired ...
-Section 50. Original Titles
Original titles rests in some degree on fiction, and denotes that state of ownership beyond which inquiry cannot be made, the land being held in paramount right. In its strict definition, origina...
-Section 51. Title By Discovery
At one time the mere discovery of land not subject to any civilized nation, was held to vest the title to such land in the nation by whose subjects the discovery was made. This doctrine, however, is n...
-Section 52. Title By Occupancy
It is universally recognized that the first nation to occupy territory not before owned by any civilized nation acquires a good title thereto. It is held that such occupancy must be effectual, and a c...
-Section 53. Title By Conquest
Title by conquest arises where one country takes territory from another by force of arms. In such cases only the title to public lands are affected, private land titles being recognized at the present...
-Section 54. Title By Cession
Title by cession includes all titles derived by grant from one country to another. As stated in the last section, the cession may be the result of conquest. It may also be the result of a purchase or ...
-Section 55. Derivative Titles
Derivative titles include all titles not original. An individual can only hold by a derivative title. The two general classes of derivative title, are title by descent, and title by purchase. ...
-Section 56. Title By Descent
Where a person takes land from a relative who dies intestate he takes by descent. Land taken under a will, even if the deceased was the parent or other near relative, is not taken by descent. The main...
-Section 57. Title By Purchase
Title by purchase covers all methods of acquiring property other than by descent. The word purchase, therefore, is used here in a much broader significance than in its ordinary use. There are many d...
-Section 58. Title Through Act Of The Parties
Titles through the act of the parties includes title derived from a deed and title derived from a will. Ownership of nearly all the land in the country is derived through this general division. Tit...
-Section 59. Public Grant
In this country land belonging to the public can only be granted away by authority of the legislative department. Such authority can be given by the legislative department of the United States or of a...
-Section 60. Private Grants
A deed is a conveyance of lands from one individual to another. Deeds may be either voluntary or involuntary. A voluntary deed is one made in pursuance of an agreement between the parties; an involunt...
-Section 61. Devise
The right of owner of land to dispose of it by will is a comparatively late addition to the common law. This right of willing away land, while existing in England during the Anglo-Saxon period, was ta...
-Section 62. Executory Devises
The rules governing transfers of land by devise are much more liberal and elastic than those governing such transfers by deeds. Certain estates which would be void if created by deed are valid when cr...
-Executory Devises. Part 2
257. 3d. A devise over for life, to a person in esse, to take place on failure of issue of the first devisee, may be good; because, the future limitation being only for the life of a person in esse, ...
-Executory Devises. Part 3
The subject of executory devisees was thus discussed by the Court in the case of Hopkins vs. Hopkins :13 Two questions have been made upon this will; the first is, whether this limitation to the f...
-Section 63. Titles By Operation Of Law
There are a number of cases where the title to land comes to a person as a result of the operation of law. Such cases are divided into three general classes as follows: (1) those arising from natural ...
-Section 64. Titles Arising From Natural Causes
Title is said to arise from natural causes in the cases of accretion and reliction. Accretion is the increase of land caused by gradual and imperceptible additions thereto caused by the washing of the...
-Section 65. Titles Arising From CIVIL Or Political Relations
Under This Division Are Included The Subjects Of Eminent Domain, Escheat, Confiscation, And Forfeiture. Eminent domain is the right possessed by the government to take property for public use, upon...
-Section 66. Titles Arising From Public Policy
Under this heading there are to be considered the subjects of prescription and limitation. Prescription is the method of acquiring title by the continued occupancy of a piece of property for a cert...
-Chapter VII. Conveyance Of Real Property. Section 67. Grantors And Grantees
In every valid transfer of real property there must be a grantor competent to give and a grantee capable of taking. Every person of legal age and sound mind is competent to grant away any estate in la...
-Section 68. Requisites Of A Deed
The requisites of a deed were thus enumerated by Lord Chief Justice Coke; This word (deed) in the understanding of the common law is an instrument written in parchment or paper, whereunto ten thin...
-Section 69. The Writing And The Material
Under the old method of transfer of land by feoffment3 no writing, of course, was, or could be, required. Under the new system of deeds which grew out of the Statute of Uses, written deeds became nece...
-Section 70. Consideration In A Deed
A consideration was not necessary in conveyances under the common law, but was held to be necessary to the validity of a deed of bargain and sale.4 At the present time, the only practical effect of a ...
-Section 71. Parts Of A Deed
Coke enumerates the eight parts of a deed as follows: ' There have been eight formal or orderly parts of a deed or feoffment, viz.; 1. the premises of the deed implied by Littleton, (section 1), 2, th...
-Section 72. Covenants And Warranty
Among the classes usually inserted in deeds there are a number of stipulations in the nature of collateral promises of the performance or non-performance of certain acts, or of agreements that a give...
-Section 73. Signing And Sealing
A seal was always required to any written deed under the common law, but signing was unnecessary prior to the passage of the Statute of Frauds. At the present time every deed must be signed and sealed...
-Section 74. Attestation And Acknowledgment And Registration
Attestation of a deed was not necessary at common law, and is not necessary in this country except where made so by statute. The Common law made no provision for the registration of deeds, and even to...
-Section 75. Delivery
Delivery was necessary to render a deed effective, both at Common law and under modern statutes. Delivery may be in escrow. A delivery in escrow is one made to a third person who is to hold the deed u...
-Chapter VIII. Description Of Land. Section 76. In General
In addition to describing the estate which the grantee is to take, it is also necessary that the deed should identify the land to be transferred by such deed. This identification of the land may be se...
-Section 77. Exceptions And Reservations
A general description of the property conveyed may be qualified by what is known as ' 'exceptions and reservations. An exception is a withdrawal from the operation of the grant of some part of wha...
-Section 78. American System Of Land Parceling
In order to secure a more scientific system of land division and description, the United States Government early adopted a uniform rectangular system of surveying the public lands of the United States...
-Section 79. Plats And Subdivisions
In the case of towns and cities a further division of the land is required for the purpose of conveyance and description. This is secured by means of plats and subdivisions. Under this system the owne...
-Chapter IX. Special Topics In Real Property. Section 80. Contest In Legal History Of England Between Those Who Desired To Allow And Those Who Desired To Prevent The Alienation Of Real Estate
One of the most interesting chapters in the legal history of England is the long contest between those who desired to keep the land mainly in a few noble families and to prevent its alienation, and th...
-Section 81. The Rule In Shelley'S Case
The two most famous statements of the rule in Shelley's Case are those by Preston and Kent which were as follows: a recovery with single voucher, see Fearn. Post. Works, p. 336; if against the tenant ...
-The Rule In Shelley'S Case. Part 2
The rule as stated by Chancellor Kent was as follows: When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a li...
-The Rule In Shelley'S Case. Part 3
The rule in Shelley's case, however, does not apply-where the ancestor takes only an estate for years (another person being the grantor); for, in such case, a remainder to his heirs, or to the heirs ...
-The Rule In Shelley'S Case. Part 4
3d. Of the application of the rule in construing devises: - The rule now under consideration having been established for purposes of general utility, it has been adopted in the construction of devise...
-The Rule In Shelley'S Case. Part 5
Butl. Feran. Cont. Rem., 114. Ch. Ca., 27. Doran vs. Ross, 1 Ves. jun., 57. Lastly, where the estate devised to the ancestor, is merely an equitable or trust estate, and that to his heirs, or the heir...
-Section 82. Legal And Equitable Estates
A classification of estates not yet referred to is that of legal and equitable estates. This subject has so far been taken up with the treatment of legal estates. An equitable estate is one where t...
-Section 83. Testamentary Conveyances
The law is much more liberal as to conveyances by will than as to conveyances by deed. Many conveyances which would be void if created in a deed are valid if made by will. Such conveyances are known a...
-Section 84. Merger
A merger is the absorption of a smaller estate into a greater. A merger will take place where two estates come into the possession of the same party, where there is no intermediate estate and where th...
-Chapter X. Forms Of Conveyances. Section 85. In General
All of the various forms of deeds now in common use in this country derive their origin from the land and conveyancing system of Great Britain, and are but modifications of two species, one of which ...
-Section 86. Common Law Original Deeds
The original method of transferring land under the common law was by what was known as livery of seisin,2 without any written deeds, these only coming in at a later period. Five forms of original land...
-Section 87. Common Law Derivative Deeds
Five forms of derivative conveyances were also recognized: release, confirmation, surrender, assignment, and defeasance. 1 Warvelle on Real Property, page 319. 2 See Chapter I on this subject, a...
-Section 88. Effect Of Statute Of Uses Upon The English Law Of Conveyancing
The history of the Statute of Uses and its effect upon the law of uses and trusts is discussed under the subject of Trusts.3 A collateral and entirely unexpected effect of the statute was its revoluti...
-Section 89. Modern Deeds
The system of modern deeds will be fully explained under the subject of Abstracts, and need only be mentioned at this point. The two main forms of modern deeds are warranty deeds 4 and quit claim deed...
-Section 90. Conveyances In Trust Or By Way Of Pledge
Conveyance in trust will be treated under the subject of Trusts,6 and conveyance by way of pledge, under the subject of Equity Jurisprudence.7 6 Volume 7, Subject 21. 7 Volume 7, Subject 20. ...
-Eighteenth Subject. Abstracts. Abstracts Of Title. Section 1. Definitions
BY George W. Warvelle, LL. D. Professor Of The Law Of Real Property At The Illinois College Of Law; Formerly Dean Of The Chicago Law School. Author Of Principles Of The Law Of Real Property, ...
-Section 2. The English Method
The differences between an English and an American abstract will be better understood by a comparison of the two systems. It has long been the practice in England, on a sale of land, or other prope...
-Section 3. The American Method
The spirit and operation of our land laws, as well as the many legal usages peculiar to the United States, preclude the adoption of the English methods in this country. Our system of registration, wit...
-Section 4. Essentials Of An Abstract
As a general proposition, an abstract should furnish all the material information contained in the original documents and records from which it is compiled, and that, as fully and completely as if the...
-Section 5. Examiner'S Duties And Liabilities
The degree of intelligence and skill required of a man by law, depends much upon his calling. A professional man must be specially educated or fitted for the duties of his vocation, and in addition to...
-Section 6. Duty Of Furnishing Abstract
In England, a purchaser may, it seems, require to be furnished with an abstract of the seller's title, even though he may already have agreed to accept the same, and he may retain such abstract during...
-Section 7. Sources Of Information
An abstract of title, as compiled in the United States, is an abridgment of the public records, to which it also bears the relation of a special index, they being the great repositories of title and t...
-Section 8. Doctrine Of Notice
As before remarked, the modern abstract owes its existence largely to the doctrine of notice. This doctrine may be briefly explained as follows: The principle is well established, that a purchaser ...
-Section 9. Registration
By the American system of registration deeds of conveyance of any interest in lands, when duly recorded in conformity with the law of the State where such land is situate, have the dignity and effect ...
-Section 10. Indexes And References
No perfect abstract of title can be compiled without the assistance of a carefully prepared tract index, that is, an index to the lands. This book is not usually kept by the recorder of deeds, and abo...
-Section 11. Compilation Of Abstracts
Examinations of title in the United States, which are usually prepared by professional examiners, do not, as a rule, disclose, except inferentially, any matter or thing affecting title save what appea...
-Section 12. Formal Parts Of An Abstract
An abstract should be prepared in a neat and orderly manner, and so disposed as to facilitate the labor of counsel in passing an opinion on the title. A formal caption should apprise the reader at the...
-Section 13. Substance Of The Abstract - Initial Statements
Whenever the abstract goes back to the foundation of title, in all cases of lands which originally formed a part of the National Domain, it should always commence with a brief note of the original ent...
-Section 14. Congressional Grants
Not a few titles have their foundation in Congressional or legislative grants, or are grounded on legislative confirmations of previously existing inchoate or equitable rights. A recurrence to these i...
-Section 15. Patents
A patent of the United States is the form of conveyance by which the nation passes its title to the public domain, and is the highest evidence of derivative title known to the law. It is conclusive as...
-Section 16. Deeds Of Conveyance
In the United States the ancient technical principles relating to common law conveyances seem to be in a great measure inapplicable. The tendency of modern legislation as well as the current of later ...
-Section 17. Corporate Conveyances
There are three classes of corporations recognized by our laws: Public municipal corporations, corporations technically private but of a quasi public character, as railroads, etc., and corporations st...
-Section 18. Conveyances By Delegated Authority
Every deed executed by virtue and in pursuance of a power should bear upon its face a recital of authority, but deeds purporting to be the direct act of the grantor though performed by an attorney in ...
-Section 19. Official Conveyances
Official deeds comprise all those forms of conveyance wherein the maker acts by virtue of an office and not in his individual or personal capacity. They cover a wide portion of the field of conveyanci...
-Section 20. Testamentary Conveyances
Conveyances by way of will, or, as they usually are termed, testamentary conveyances, occur in every title of long standing, and give rise to more questions in construction than any other species of c...
-Section 21. Probate Proceedings
It is estimated that about once in every twenty-five years, all the real property in the country passes under the supervision of the probate courts, and whether the estimate be based on correct or inc...
-Section 22. Descents
The best known but least understood title to land, is that which the law raises for the heir upon the death of the ancestor. It is called title by descent, and though for practical purposes is regarde...
-Section 23. Liens, Charges And Incumbrances
A lien is a hold or charge which one person has upon the property of another as a security for some debt or charge, and in its broad sense would cover all burdens, charges or incumbrances placed on la...
-Section 24. Lis Pendens
A pending suit involving title conveys notice to intending purchasers, and charges the land, in whosesoever hands it may be, with the consequences of whatever decree may be made. This is known technic...
-Section 25. Attachment
The office of an attachment is simply to secure to a creditor the property which a debtor has at the time the writ is levied, so that it may be seized and sold in satisfaction of the debt, after judgm...
-Section 26. Judgments And Decrees
Any distinction between judgments and decrees is fanciful rather than real, since all adjudications by a court of competent jurisdiction are essentially judgments, yet in practice the term decree is...
-Section 27. Judicial And Execution Sales
No inconsiderable portion of the real estate of the country changes hands every year through the media of execution and judicial sales, meaning by such terms, all sales and transfers of property made ...
-Section 28. Actions And Proceedings
In the compilation of abstracts it is frequently necessary to show certain classes of actions in the courts that operate directly upon the title to land and culminate in what are known as judgments in...
-Section 29. Taxes And Tax Titles
Taxes are burdens or charges imposed by the legislative power, upon persons or property, to raise money for public purposes or to accomplish some governmental end. The lien for taxes attaches to all l...
-Section 30. Adverse Titles
In examinations of title it is not uncommon to find two, or even more, conflicting claims of title evidenced by deeds or other matter of record, while inquiries in pais may further disclose claims of ...
-Section 31. Insolvency And Bankruptcy
Title is frequently affected by proceedings in insolvency and bankruptcy. Where the action is had in the State courts the proceeding is usually denominated insolvency, and the effective means whereby ...
-Section 32. Agreements For Conveyance
and contracts, or agreements to deed, are of frequent occurrence on the records, and occasionally bonds for the same purpose will be found, though these latter are now practically obsolete. Should the...
-Section 33. Leases
A lease is a contract for the possession and profits of land on the one side, and a recompense of rent on the other. The estate or interest conveyed by a lease is personal in its nature, whatever may ...
-Section 34. Miscellaneous Evidence
There is a variety of instruments which do not rise to the dignity of deeds, but which yet have a direct bearing upon the question of title, and which must be included in all properly prepared abstrac...
-Section 35. What Title Should Be Shown
In the absence of any stipulations to the contrary, the vendor, in every contract of sale, impliedly undertakes to furnish to the purchaser a marketable title. What is meant by the expression marketa...
-Section 36. Flaws In The Title
The term flaw is used to describe an apparent gap or break in the chain of title, which, when occurring constitutes in many cases an unsurmountable impediment. A requisition must in such case be mad...
-Section 37. Clouds Upon Title
Frequently the examination of an abstract will disclose minor defects, imperfect descriptions, invalid instruments, and abortive attempts at conveyance, which, while not reaching the merits of the tit...
-Section 38. Inquiries In Pais
Technically, when an attorney is called to pass the title to land under a given state of facts as presented by an abstract, he is not presumed or supposed to extend his investigations beyond what is d...
-Section 39. Opinions Of Title
A formal opinion upon the merits of the proffered title does not seem to be contemplated by the English system of abstracting, and this feature is doubtless an American idea. The queries, objections, ...
-Section 40. Liability Fob Erroneous Opinions
An attorney employed by a purchaser of real property to investigate the title of the grantor prior to the purchase, impliedly contracts to exercise reasonable care and skill in the performance of the ...
-Section 41. Perusing An Abstract
It is difficult to lay down hard and fast rules for any matter that depends to a great extent on the habits and mental methods of the individual. This is strictly true of the perusal of an abstract. T...
-Nineteenth Subject. Mining Law. Chapter I. Introductory And Historical. Section 1. Definition
A mine, strictly speaking, is a tunnel, shaft, or other opening in the earth made for the purpose of getting out the underlying minerals;1 but the word is also used to denote the vein or deposit of m...
-Section 2. Mining Law - A Branch Of Law Of Real Property
Strictly speaking, mining law is a branch of the law of Real Property. The ownership of land (at least under the common law), carries with it the ownership of all minerals found under the surface.5 Mi...
-Section 3. Comparison Between The CIVIL Law And The Common Law Rule As To The Ownership Of Mines
The continental systems were the outgrowth of the civil law, which, without exception, furnished the basis of the laws of nearly every country in Europe outside of Great Britain, and to some extent t...
-Section 4. "Royal Mines" In England
As was seen in the last section, the right of land ownership in the minerals found beneath their land was limited by the rights of the Crown, in what was known as Royal mines. The subject of Royal ...
-Section 5. Sources Of Mining Titles In The United States
In the United States there are at least two independent systems of sovereignty which may be exercised in respect of mines and mineral lands, namely: that of the original thirteen states, and of the o...
-Chapter II. Laws Governing Mines. Section 6. Sources Of Mining Law In The United States
The existing mining laws in force in the United States, are drawn from several sources, as follows: (1) United States Statutes; (2) State Statutes; (3) Rules of Mining Districts; (4) Customs. These fo...
-Section 7. United States Statutes
The mining rules of the highest authority are those found in the United States Statutes. The present system of Federal laws governing mines and mining are contained in the Act of July 4, 1866, with th...
-Section 8. State Statutes
The states and territories are authorized to legislate respecting the location, manner of recording, and amount of work necessary to hold possession of a mining claim, and nearly all the mining states...
-Section 9. Rules Of Mining Districts
The origin of mining districts and of their rules was in the mining camps of California, in 1849, before any territorial form of government had been established and the same system was followed and p...
-Section 10. Mining Customs
The customs of miners are regarded as the common law of mining,6 and their force has been recognized and continues in force by Acts of Congress.7 Mining customs must yield to Federal or State Statutes...
-Chapter III. Lands Open To Exploration And Purchase As Mines, Under The Statutes Of The United States. Section 11. Mineral Lands Open To Purchase By Citizens
All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they a...
-Section 12. Lands Which Cannot Be Located On
As the language in the statute implies, only public mineral lands of the United States are open to exploration, location, and purchase. It therefore follows that where land is appropriated or occupie...
-Chapter IV. Who May Locate Claim. Section 13. In General
The Federal Statutes provide that mining claims may be located either by citizens of the United States, or by those who have declared their intention to become citizens.1 Under this statute it has bee...
-Section 14. Aliens
The Mining Acts throw open the public domain to citizens only, and to those who have declared their intention to become citizens. It would seem from their language that an alien could not locate ...
-Section 15. Location By Agents
A location may be made by an agent, and in such a case, written authority from the principal is not necessary.6 In such a case, however, there must either be a previous authorization to use the name o...
-Chapter V. Kinds And Extent Of Claims. Section 16. In General
The two important kinds of mining claims are lode and placer claims. Subsidiary to these are tunnel claims and placer claims containing a lode. The Federal statutes make separate provisions ...
-Section 17. Lodes And Veins
The word lode and the word vein are used indiscriminately in the Acts of Congress as well as in the popular language, to signify the same thing. In Bainbridge on Mines, the text1 defines them in t...
-Section 18. Tunnel Claims
Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand fe...
-Section 19. Placer Claims
The following provisions of the Federal Statutes relate to the location of placer claims: Claims usually called 'placers' including all forms of deposit excepting veins of quartz, or other rock ...
-Section 20. Coal Lands
The provisions in the Federal Statutes as to the acquisition of coal lands from the government are as follows: Every person above the age of twenty-one years, who is a citizen of the United States...
-Chapter VI. Essentials Of Valid Location. Section 21. In General
In order to secure a valid mining claim there must be a discovery of the vein in the case of a lode claim/ a proper location, including the posting of notice, and (generally) a proper recording of not...
-Section 23. Recording Location
The Federal Statutes do not require the recording of a location notice, leaving this question to be determined by State statutes or mining district regulations.9 Such a recording is required by statut...
-Chapter VII. Estate Secured By Location. Section 24. In General
A location perfected as required by law gives to the locator the exclusive right of possession of the surface ground and all the veins of every kind, not only the one located, but all others includin...
-Section 25. Extra-Lateral Rights
The question of the extra-lateral rights of a locator has been thus summarized by the Supreme Court of the United States in the case of Del Monte Min., etc., Co. vs. Last Chance Min. Co.3 Our conc...
-Section 26. Rights Under Defective Location
Every locator is bound by the location which he himself makes. The courts cannot make a new location for him, and thereby enlarge his rights.6 They can only give him such rights as his imperfect locat...
-Section 27. Cross Veins
The statutory provision as to cross veins, is as follows: Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all or...
-Section 28. Placer Claim Containing Lope
The statute has recognized what the experience of the miner has proven, that the same land may contain both a placer and a lode; or more accurately speaking, that placer ground may likewise contain a ...
-Chapter VIII. Forfeiture, Abandonment And Relocation. Section 29. Abandonment
As has already been stated the rights of a locator of an unpatented mining claim are only the rights of usage of the property, and are lost by abandonment.1 Such a thing as a conditional abandonmen...
-Section 30. Failure To Perform Annual Labor
The provisions of the Federal Statutes as to the requirements for the performance of annual labor on each claim are as follows: * * * On each claim located after the tenth day of May, eighteen hun...
-Section 31. Forfeiture To Co-Owner
* * * Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improvements may, at th...
-Chapter IX. Patents On Mining Claims. Section 33. Statutory Provisions
The obtaining of patents for mining claims is regulated by the Federal Statutes as follows: A patent for any land claimed and located for valuable deposits may be obtained in the following manner:...
-Chapter X. Special Topics In Mining Law. Section 34. Eminent Domain
The government has the right to take mining property, as much as any other species of property by the right of eminent domain.1 It has been held in some cases that mine owners may exercise the righ...
-Section 35. Respective Rights Of The Parties When Surface And Mineral Estates Are Severed
The ownership of the minerals may be vested in one, while the ownership of the surface is in another. This severance is often created by deed, in which case it amounts practically to a partition on a ...
-Questions. Real Property
Chapter I Page 11. 1. What is included under the term Real Property? Pages 12-18. 1. Give an account of the Feudal System. Pages 19-22. 1. Describe livery of seisin. Pages 23-25. ...
-Questions. Questions On Abstracts
Page 151. 1. Define an abstract. 2. From what documents is an abstract compiled in England? 3. From what documents is an abstract compiled in the United States? Pages 152-154. 1. Compar...
-Questions. Mining Law
Page 247. 1. Define a mine. 2. Define minerals. 3. Discuss the relation existing between mining law and the law of real property. Page 248. 1. Compare the civil law rule and the common ...
-Appendix A. Real Property. The Feudal System
(This Appendix is taken from the Appendix to Thomas' Edition of Coke's Institutes, Edition of 1836.) It remains to say something of the revolutions of the feud in the jurisprudence of our own natio...
-Appendix A. Real Property. The Feudal System. Part 2
In the feudal law, he is a person related in blood to the ancestor: and, in consequence of that relationship, entitled either, merely by act of law, or, by the concurrent effect of law and the charter...
-Appendix A. Real Property. The Feudal System. Part 3
But this, as to such collaterals as were not lineal heirs of the first donee, was effected through the medium of a fiction completely and peculiarly feudal. When a person took by descent, his brothers...
-Appendix A. Real Property. The Feudal System. Part 4
Thus the property and dominion of the inheritance absolutely vested in him in equity, with an immediate right to compel a legal transfer of it. In this manner, by the Roman law, the heir succeeded, in...
-Appendix A. Real Property. The Feudal System. Part 5
Upon this, it was held, that if the testator appointed several persons jointly, to the inheritance, they formed, together, but one degree; if he appointed to it several persons successively, though in...
-Appendix A. Real Property. The Feudal System. Part 6
The general doctrine was, that where the heir claimed, as heir, the lands warranted, he was bound by the warranty, in those cases only, where he inherited, from the ancestor, fee simple lands of equal...
-Appendix A. Real Property. The Feudal System. Part 7
This was called a recognizance. If the debt was not paid at the time appointed, the recognizance was held to be forfeited, and the body, lands and goods of the debtor, were to be delivered to the merc...
-Appendix A. Real Property. The Feudal System. Part 8
By what steps it prevailed here, is so happily and so concisely explained, in a note of the present Editor's most learned predecessor in this work, (note 1 to page 111 b.) as to render any deduction o...
-Appendix B. To Real Property. Land Registration Under The Torrens Laws. (By Jacob M. Shebbahn.)
Among the most important principles of the law of real property, there is none of greater moment than the one which encourages the repose of titles. Since by the passing of the old Feudal tenures, lan...
-Real Property. Land Registration Under The Torrens Laws. Part 2
To provide what was thought to be a final remedy for the removal of this barrier of uncertainty, various recording laws were enacted imposing upon the recipient of a conveyance the duty of having the ...
-Land Registration Under The Torrens Laws. Part 3
In treating of the operation of the law, it will be impossible to present more than a brief general view of the same, and while it might be interesting to make a comparative study of the methods and p...
-Land Registration Under The Torrens Laws. Part 4
In justice and fairness to the Torrens system, however, it can truthfully be said that these particular thrusts of the opposition have little or no support when examined in the light of facts in count...
-Appendix C. To Real Property. Warranty Deed. - Long Form
THIS INDENTURE, Made this................................day of ...................... in the year of our Lord One Thousand Nine Hundred......................BETWEEN .............................. ...
-Warranty Deed. - Statutory Form
THIS INDENTURE WITNESSETH, That the Grantor............. ................................................................................................. of the....................in the County...
-Quit Claim Deed. - Long Form
THIS INDENTURE, Made this...............day of................ in the year of our Lord one Thousand Nine Hundred..................... BETWEEN........................................................
-Quit Claim Deed. - Statutory Form
THIS INDENTURE WITNESSETH, that the Grantor............ of the.............................in the County of................... and State of.................for the consideration of.................
-Real Estate Mortgage. - Statutory Form
THIS INDENTURE WITNESSETH, That the Mortgagor......... of the........................in the County of........................ and State of..............................Mortgage ... and Warrant ....







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